MEMORANDUM OPINION No. 04-11-00842-CR
Osvaldo GALDEANO, Appellant
v.
The STATE of Texas, Appellee
From the County Court at Law No. 1, Bexar County, Texas Trial Court No. 327064 The Honorable John D. Fleming, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Rebecca Simmons, Justice
Delivered and Filed: August 15, 2012
AFFIRMED
Appellant Osvaldo Galdeano was arrested and charged with possession of marihuana.
After the trial court denied his motion to suppress evidence, Galdeano entered a plea of nolo
contendere. On appeal, Galdeano challenges the trial court’s ruling on the motion to suppress.
We affirm the trial court’s judgment. 04-11-00842-CR
BACKGROUND 1
Officer Adrian Owens was assigned to the Problem Oriented Policing (POP) Unit that
identifies and patrols high crime areas in San Antonio, Texas. At 1:39 a.m. on May 10, 2010,
Officer Owens and his partner were patrolling such an area and spotted a vehicle parked in a
commercial parking lot. All of the surrounding businesses were closed at that hour. Galdeano
was seated in the vehicle’s driver’s seat, and another adult male was seated in the front passenger
seat. Two men were standing beside the vehicle next to the passenger side window. One of the
men was leaning into the car; the other was acting as a “lookout.”
Based on Officer Owens’s training and experience, he testified that he believed a drug
transaction was in progress. As the officers entered and parked in the lot, the two men standing
beside the vehicle quickly turned and walked away. The officers exited their vehicle and
“called” the two men back to the area for “identification.” While speaking with the two men,
Officer Owens witnessed Galdeano—still located in the vehicle—reach under the driver’s seat.
Believing Galdeano was reaching for a weapon, Officer Owens asked Galdeano to step out of the
car. Galdeano complied and, once outside the vehicle, consented to a search of his person and
vehicle. Owens found marihuana under the driver’s seat and in Galdeano’s pants pocket.
Galdeano was arrested and charged with possession of marihuana.
Officer Owens was the sole witness to testify at the suppression hearing. Following his
testimony, the trial court denied Galdeano’s motion to suppress evidence. Galdeano pleaded
nolo contendere to the offense of possession of marihuana.
MOTION TO SUPPRESS
Galdeano contends the trial court erred in denying his motion to suppress and he raises
two issues: (1) the initial approach of the officers constituted a detention, and (2) the officers 1 The following facts are derived from Officer Owens’s testimony at the hearing on the motion to suppress.
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lacked reasonable suspicion to detain him. The State responds that the officers’ interaction with
Galdeano was merely an encounter; therefore, the officers did not need reasonable suspicion to
interact with him. The State argues that once Galdeano was seen reaching under the car seat, the
officers developed reasonable suspicion to detain him. The trial court determined the officers’
interaction with Galdeano was an encounter until Officer Owens asked Galdeano to exit his
vehicle.
A. Standard of Review
We use a bifurcated standard in reviewing a trial court’s ruling on a motion to suppress
evidence. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We give almost total
deference to the trial court’s factual determinations; we review de novo the application of law to
the facts. Id. at 447–48.
B. Police-Citizen Interactions
There are three “categories of interactions between police officers and citizens:
encounters, investigative detentions, and arrests.” State v. Perez, 85 S.W.3d 817, 819 (Tex.
Crim. App. 2002); accord Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010). A court
examines the totality of the circumstances in determining which of the categories is implicated
by an interaction between an officer and a citizen. Crain, 315 S.W.3d at 49. When a defendant
asserts that an interaction between police and the defendant is a seizure rather than an encounter,
the defendant bears the initial burden of establishing the interaction was a seizure rather than an
encounter. See State v. Woodard, 341 S.W.3d 404, 413 (Tex. Crim. App. 2011).
Police are not required to possess any level of suspicion to initiate an encounter. See id.
(citing Florida v. Bostick, 501 U.S. 429, 434 (1991) (“[A] seizure does not occur simply because
a police officer approaches an individual and asks a few questions.”)). To justify an
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investigative detention, however, an officer “must have reasonable suspicion founded on
specific, articulable facts which, when combined with rational inferences from those facts, would
lead the officer to conclude that a particular person actually is, has been, or soon will be engaged
in criminal activity.” Crain, 315 S.W.3d at 52; accord Derichsweiler v. State, 348 S.W.3d 906,
914 (Tex. Crim. App. 2011).
In determining whether an encounter or an investigative detention occurred, a “court
focuses on whether the officer conveyed a message that compliance with the officer’s request
was required.” Crain, 315 S.W.3d at 49. “It is only when the police officer engages in conduct
which a reasonable man would view as threatening or offensive even if performed by another
private citizen, does . . . an encounter become a seizure.” State v. Garcia-Cantu, 253 S.W.3d
236, 243 (Tex. Crim. App. 2008) (internal quotation marks and citation omitted). Courts may
look at several factors in making the encounter-detention determination, including “the
threatening presence of several officers, the display of a weapon by an officer, some physical
touching of the person of the citizen, or the use of language or tone of voice indicating that
compliance with the officer’s request might be compelled.” Crain, 315 S.W.3d at 49–50
(quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)).
C. Analysis
1. The Interaction Was an Encounter
Based on the record, we cannot conclude that Galdeano met his initial burden of
establishing that he was seized prior to Officer Owens’s observation of Galdeano’s furtive hand
movement and the officer’s subsequent request that Galdeano exit his vehicle. See Woodard,
341 S.W.3d at 412–13 (placing the initial burden on the accused to prove the interaction was not
an encounter). Nothing in the record indicates that Officer Owens or his partner (1) approached
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Galdeano in a threatening manner, (2) displayed a weapon, (3) physically touched Galdeano, or
(4) used language or a particular tone of voice that indicated Galdeano was being compelled to
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MEMORANDUM OPINION No. 04-11-00842-CR
Osvaldo GALDEANO, Appellant
v.
The STATE of Texas, Appellee
From the County Court at Law No. 1, Bexar County, Texas Trial Court No. 327064 The Honorable John D. Fleming, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Rebecca Simmons, Justice
Delivered and Filed: August 15, 2012
AFFIRMED
Appellant Osvaldo Galdeano was arrested and charged with possession of marihuana.
After the trial court denied his motion to suppress evidence, Galdeano entered a plea of nolo
contendere. On appeal, Galdeano challenges the trial court’s ruling on the motion to suppress.
We affirm the trial court’s judgment. 04-11-00842-CR
BACKGROUND 1
Officer Adrian Owens was assigned to the Problem Oriented Policing (POP) Unit that
identifies and patrols high crime areas in San Antonio, Texas. At 1:39 a.m. on May 10, 2010,
Officer Owens and his partner were patrolling such an area and spotted a vehicle parked in a
commercial parking lot. All of the surrounding businesses were closed at that hour. Galdeano
was seated in the vehicle’s driver’s seat, and another adult male was seated in the front passenger
seat. Two men were standing beside the vehicle next to the passenger side window. One of the
men was leaning into the car; the other was acting as a “lookout.”
Based on Officer Owens’s training and experience, he testified that he believed a drug
transaction was in progress. As the officers entered and parked in the lot, the two men standing
beside the vehicle quickly turned and walked away. The officers exited their vehicle and
“called” the two men back to the area for “identification.” While speaking with the two men,
Officer Owens witnessed Galdeano—still located in the vehicle—reach under the driver’s seat.
Believing Galdeano was reaching for a weapon, Officer Owens asked Galdeano to step out of the
car. Galdeano complied and, once outside the vehicle, consented to a search of his person and
vehicle. Owens found marihuana under the driver’s seat and in Galdeano’s pants pocket.
Galdeano was arrested and charged with possession of marihuana.
Officer Owens was the sole witness to testify at the suppression hearing. Following his
testimony, the trial court denied Galdeano’s motion to suppress evidence. Galdeano pleaded
nolo contendere to the offense of possession of marihuana.
MOTION TO SUPPRESS
Galdeano contends the trial court erred in denying his motion to suppress and he raises
two issues: (1) the initial approach of the officers constituted a detention, and (2) the officers 1 The following facts are derived from Officer Owens’s testimony at the hearing on the motion to suppress.
-2- 04-11-00842-CR
lacked reasonable suspicion to detain him. The State responds that the officers’ interaction with
Galdeano was merely an encounter; therefore, the officers did not need reasonable suspicion to
interact with him. The State argues that once Galdeano was seen reaching under the car seat, the
officers developed reasonable suspicion to detain him. The trial court determined the officers’
interaction with Galdeano was an encounter until Officer Owens asked Galdeano to exit his
vehicle.
A. Standard of Review
We use a bifurcated standard in reviewing a trial court’s ruling on a motion to suppress
evidence. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We give almost total
deference to the trial court’s factual determinations; we review de novo the application of law to
the facts. Id. at 447–48.
B. Police-Citizen Interactions
There are three “categories of interactions between police officers and citizens:
encounters, investigative detentions, and arrests.” State v. Perez, 85 S.W.3d 817, 819 (Tex.
Crim. App. 2002); accord Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010). A court
examines the totality of the circumstances in determining which of the categories is implicated
by an interaction between an officer and a citizen. Crain, 315 S.W.3d at 49. When a defendant
asserts that an interaction between police and the defendant is a seizure rather than an encounter,
the defendant bears the initial burden of establishing the interaction was a seizure rather than an
encounter. See State v. Woodard, 341 S.W.3d 404, 413 (Tex. Crim. App. 2011).
Police are not required to possess any level of suspicion to initiate an encounter. See id.
(citing Florida v. Bostick, 501 U.S. 429, 434 (1991) (“[A] seizure does not occur simply because
a police officer approaches an individual and asks a few questions.”)). To justify an
-3- 04-11-00842-CR
investigative detention, however, an officer “must have reasonable suspicion founded on
specific, articulable facts which, when combined with rational inferences from those facts, would
lead the officer to conclude that a particular person actually is, has been, or soon will be engaged
in criminal activity.” Crain, 315 S.W.3d at 52; accord Derichsweiler v. State, 348 S.W.3d 906,
914 (Tex. Crim. App. 2011).
In determining whether an encounter or an investigative detention occurred, a “court
focuses on whether the officer conveyed a message that compliance with the officer’s request
was required.” Crain, 315 S.W.3d at 49. “It is only when the police officer engages in conduct
which a reasonable man would view as threatening or offensive even if performed by another
private citizen, does . . . an encounter become a seizure.” State v. Garcia-Cantu, 253 S.W.3d
236, 243 (Tex. Crim. App. 2008) (internal quotation marks and citation omitted). Courts may
look at several factors in making the encounter-detention determination, including “the
threatening presence of several officers, the display of a weapon by an officer, some physical
touching of the person of the citizen, or the use of language or tone of voice indicating that
compliance with the officer’s request might be compelled.” Crain, 315 S.W.3d at 49–50
(quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)).
C. Analysis
1. The Interaction Was an Encounter
Based on the record, we cannot conclude that Galdeano met his initial burden of
establishing that he was seized prior to Officer Owens’s observation of Galdeano’s furtive hand
movement and the officer’s subsequent request that Galdeano exit his vehicle. See Woodard,
341 S.W.3d at 412–13 (placing the initial burden on the accused to prove the interaction was not
an encounter). Nothing in the record indicates that Officer Owens or his partner (1) approached
-4- 04-11-00842-CR
Galdeano in a threatening manner, (2) displayed a weapon, (3) physically touched Galdeano, or
(4) used language or a particular tone of voice that indicated Galdeano was being compelled to
remain in the officers’ presence, prior to asking him to exit his vehicle. See Crain, 315 S.W.3d
at 49–50 (quoting Mendenhall, 446 U.S. at 554). Additionally, there was no evidence presented
at the motion to suppress hearing that the officers activated their vehicle’s emergency lights or
spotlight, or that the officers boxed in Galdeano’s vehicle. See Garcia-Cantu, 253 S.W.3d at 243
(noting that an officer’s boxing in a citizen’s vehicle and using emergency lights are factors in
determining the status of a citizen-police interaction).
Galdeano argues that he reasonably believed he was being detained because the two men
standing outside of Galdeano’s car initially began to walk away but returned only after being
asked by the officers. However, there is no evidence that the officers threatened or ordered the
men to return to Galdeano’s vehicle. Officer Owens testified that he “called” the men back to
Galdeano’s vehicle to “identify” them. The record contains no description of the officer’s tone,
nor is there any description of how the officer “called” the men to return. Cf. Crain, 315 S.W.3d
at 49–50 (noting that an officer’s language or tone of voice is a factor in distinguishing seizures
from encounters). Moreover, merely asking for a person’s identification does not necessarily
indicate that a seizure, as opposed to an encounter, has taken place. See State v. Castleberry, 332
S.W.3d 460, 468 (Tex. Crim. App. 2011) (determining that an interaction was an encounter
where an officer asked two men for identification after witnessing the two men walking behind a
closed business at 3:00 a.m. in an area with a high burglary rate).
Galdeano also supports his contention by noting that Officer Owens admitted during
cross-examination that he subjectively believed he was detaining the four men as soon as he
approached them. However, “[b]ecause the Fourth Amendment test is an objective one, an
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officer’s subjective intent ‘to investigate’ is relevant only to the extent to which such an intent is
communicated to the citizen by means of an authoritative voice, commanding demeanor, or other
objective indicia of official authority.” Garcia-Cantu, 253 S.W.3d at 244 n.41. Because the
record does not show that either of the officers communicated their intent to detain Galdeano or
the other men by using an authoritative voice, commanding demeanor, or other authoritative
display, Officer Owens’s subjective belief that he was detaining the men is inapposite. See id.
Based on the foregoing, we conclude that the trial court did not err in determining that the
officers’ interaction with Galdeano was an encounter up until Officer Owens asked Galdeano to
exit his vehicle.
2. The Officers had Reasonable Suspicion
It is undisputed that Galdeano was detained when Officer Owens asked Galdeano to exit
his vehicle. Thus, we must determine whether Officer Owens had reasonable suspicion to detain
Galdeano at that time.
Officer Owens was aware of the following information at the time he detained Galdeano.
Owens testified that he had made several narcotics arrests at the particular location where
Galdeano was parked, and he had personally purchased narcotics at the location as an undercover
officer. Owens explained that the area was a high crime area where drug transactions and violent
crimes occurred almost nightly and noted that Galdeano was parked in a business parking lot and
none of the businesses were open at the late hour. He also explained that the body positioning of
the two men standing outside of the car raised his suspicion that a drug transaction was
occurring. He described one of the men as a “lookout” and described both men as “field
contacts.” Based on Officer Owens’s five years of experience with the San Antonio Police
Department and his experience with the specialized POP Unit, he concluded that a drug
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transaction was occurring. Further, Owens testified that he believed Galdeano was reaching for a
weapon when Galdeano made a furtive arm movement under the driver’s side seat of his vehicle.
Under the totality of the circumstances, Officer Owens had reasonable suspicion to detain
Galdeano. See Derichsweiler, 348 S.W.3d at 914. Officer Owens pointed to specific and
articulable facts, which, taken together with rational inferences from those facts, justified his
reasonable belief that Galdeano was involved in a drug transaction and reached for a weapon.
See Morfin v. State, 34 S.W.3d 664, 668 (Tex. App.—San Antonio 2000, no pet.) (determining
that a search was “justified where the officer can point to specific and articulable facts which
reasonably led him to conclude that the individual might possess a weapon”); Graham v. State,
893 S.W.2d 4, 7 (Tex. App.—Dallas 1994, no pet.) (holding a search was permissible where the
officer testified he was concerned for his safety when the defendant reached under his seat).
CONCLUSION
The trial court did not err in denying Galdeano’s motion to suppress evidence.
Accordingly, we affirm the trial court’s judgment.
Rebecca Simmons, Justice
DO NOT PUBLISH
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